“In a lively hour of argument last Wednesday,” Law.com relayed last week, “the U.S. Supreme Court justices debated the distinction between rights and remedies, its authority to promulgate new constitutional rules thru its decisions, and an issue that Justice Stephen Breyer termed ‘metaphysical’.”
The case before the Supreme Court was Danforth v. Minnesota, but that now comes down to pitting the Court’s decision in Crawford v. Washington against standards set fifteen years earlier in the Court’s precedent Teague v. Lane.
Danforth is asking two questions. First, whether state supreme courts are required to use the standard set in Teague to determine whether Supreme Court decisions apply retroactively to state-court criminal cases or their own tests?
Secondly, it asks whether Crawford sought to establish a “new rule of constitutional criminal procedure ,” according to the Teague definition of that phrase, and, if so, whether it was a watershed rule of procedure subject to full retroactive application?”
Chief Justice Roberts commented that “the Court’s decision in Teague is at the ‘very least’ federal common law regarding retroactivity: I think it’s more than that. I think it’s… substantive federal constitutional law. But it’s at least federal common law, and doesn’t federal common law pre-empt state common law?”
Crawford overruled the near-quarter century old Ohio v. Robert. Perhaps prophetically and in echoing Teague, Chief Justice Rehnquist in his concurring opinion wrote of the decision as presenting a “new rule,” but he added that “though there were no vested interests involved (in Crawford ), unresolved questions for the future of everyday criminal trials throughout the country surely counsel the same sort of caution (with) the Court grandly declaring that ‘we leave for another day any effort to spell out a comprehensive definition of testimonial.’ …But the thousands of federal prosecutors, and tens of thousands of state prosecutors, need answers as to what beyond the specific kinds of ‘testimony’ the Court lists is covered by this new rule. They need them now, not months or years from now. Rules of criminal evidence are applied every day in courts throughout the country, and parties should not be left in the dark in this manner.”
Asst. Minnesota State Public Defender Benjamin Butler noted that different state appellate processes last different periods of time, which could compromise the goals of uniformity and finality in retroactivity contexts -- which is where the “metaphysics” came in with Justice Breyer pressing the hypothetical question of three defendants in three separate states with appeals that take different lengths of time.
(Arguments)
Monday, November 05, 2007
Hawaiian sentencing law
… and speaking of Hawaii, guess what they have besides sunny beaches, volcanoes, the ocean and clean air? They’ve got new sentencing law statutes!
Hawaii’s been a bit slow catching up to the rest of us with sentencing enhancements, according to an editorial in the October 27th. Honolulu Star-Bulletin. But that was then, and, thanks to a special session of their legislature, all that changed Wednesday.
In February, the U.S. Supreme Court vacated the judgment of the Hawaiian Supreme Court in a case involving a defendant who had been convicted of 22 felonies alleged in five separate indictments, including one count of attempted second degree murder. The case was remanded back down to the state high court for reconsideration “in light of Cunningham v. California,” a case dealing with the upward enhancement of a defendant tried & convicted of sexual child abuse in 2006, in which the Supreme Court found that “placing sentence-elevating factfinding in the judge’s province violates a defendant’s right to trial by jury safeguards.”
Earlier this month, the Hawaiian Supreme Court on that remand returned a holding that the state’s statutes governing extended term sentencing were unconstitutional because they required a judge, rather than a jury, find facts other than prior or concurrent convictions needed for proper enhancements in light of federal standards. The Court declined to exercise its authority, however, to order that a jury be empanelled to find those facts necessary to impose an extended term of imprisonment, because, it said, when the legislature had previously tried to conform to extended term sentencing schemes to requirements being set by the U.S. Supreme Court, it had not vested in juries the power to find the requisite facts, directing that the court retain that responsibility.
(The case, by the way, Hawaii v. Maugaotega, was remanded to the original circuit court for non-extended term sentencing.)
What’s any of this got to do with Ohio courts?
In its remand of Maugaotega, the Hawaiian Supreme Court noted that State ex. rel. Mason v. Griffin, in Ohio in 2004, “concluded that, in light of constitutional reasons unique to Ohio, and statutory language similar to Hawaii’s requiring a court, not a jury, find aggravating factors for an extended sentence, the trial court ‘patently and unambiguously lacks jurisdiction to hold a jury sentencing hearing’ and granting a writ of prohibition.”
Mason was overruled in part by State v. Hines last June, but the pertinent parts here were not of that overruling. In fact, the Ohio Supreme Court in Hine summarizes Ohio’s enhancement remake by saying “When (State v. Foster) was decided, the Supreme Court went to great lengths to fashion an appropriate remedy, ultimately holding that severance was the only applicable remedy. Any question left unresolved in Griffen was answered in Foster, which did not limit courts to the lowest sentence or concurrent sentences.”
Hawaii’s been a bit slow catching up to the rest of us with sentencing enhancements, according to an editorial in the October 27th. Honolulu Star-Bulletin. But that was then, and, thanks to a special session of their legislature, all that changed Wednesday.
In February, the U.S. Supreme Court vacated the judgment of the Hawaiian Supreme Court in a case involving a defendant who had been convicted of 22 felonies alleged in five separate indictments, including one count of attempted second degree murder. The case was remanded back down to the state high court for reconsideration “in light of Cunningham v. California,” a case dealing with the upward enhancement of a defendant tried & convicted of sexual child abuse in 2006, in which the Supreme Court found that “placing sentence-elevating factfinding in the judge’s province violates a defendant’s right to trial by jury safeguards.”
Earlier this month, the Hawaiian Supreme Court on that remand returned a holding that the state’s statutes governing extended term sentencing were unconstitutional because they required a judge, rather than a jury, find facts other than prior or concurrent convictions needed for proper enhancements in light of federal standards. The Court declined to exercise its authority, however, to order that a jury be empanelled to find those facts necessary to impose an extended term of imprisonment, because, it said, when the legislature had previously tried to conform to extended term sentencing schemes to requirements being set by the U.S. Supreme Court, it had not vested in juries the power to find the requisite facts, directing that the court retain that responsibility.
(The case, by the way, Hawaii v. Maugaotega, was remanded to the original circuit court for non-extended term sentencing.)
What’s any of this got to do with Ohio courts?
In its remand of Maugaotega, the Hawaiian Supreme Court noted that State ex. rel. Mason v. Griffin, in Ohio in 2004, “concluded that, in light of constitutional reasons unique to Ohio, and statutory language similar to Hawaii’s requiring a court, not a jury, find aggravating factors for an extended sentence, the trial court ‘patently and unambiguously lacks jurisdiction to hold a jury sentencing hearing’ and granting a writ of prohibition.”
Mason was overruled in part by State v. Hines last June, but the pertinent parts here were not of that overruling. In fact, the Ohio Supreme Court in Hine summarizes Ohio’s enhancement remake by saying “When (State v. Foster) was decided, the Supreme Court went to great lengths to fashion an appropriate remedy, ultimately holding that severance was the only applicable remedy. Any question left unresolved in Griffen was answered in Foster, which did not limit courts to the lowest sentence or concurrent sentences.”
Friday, October 19, 2007
State Level e-Discovery Rules
Sedona Conference director of education & content, Ken Withers, commented in last week’s National Law Journal that “attorneys will have to get up to speed with electronic discovery,” and that if they thought they were going to be able to avoid it simply by staying out of the federal courts, “they’re going to have to think again quickly.”
Following the Federal rules, which kicked in Dec. 1, 2006, the article equates electronic discovery rules being adopted in Idaho, Indiana, Minnesota, Montana, New Hampshire and New Jersey. Arizona has rules which will become effective in January, and Maryland, Nebraska and Ohio have rules proposed.
The Ohio Supreme Court has amendment proposals to several sets of court rules including:
Both Criminal and Civil Procedures, including Civ.R. 16, 26, 33, 34, 36, 37, and 45 based on
amendments made to the Federal Rules of Civil Procedure, and CrimR. 10, accommodating electronic information. (Comments on those proposals are being accepted until November 14, 2007)
Lawyers, however are still predicting litigation backlashes due to state quirks and loopholes, the article says, and practitioners are going to have to deal with price tags on things like producing electronically stored documents and finding experts on “long-obsolete programming languages.”
A recent Law.com article, too, posted e-discovery storm warnings, in a look at the order issued by Central California District Magistrate Jacqueline Chooljian requiring TorrentSpy to turn over data “only ephemerally kept on its computers’ RAM.”
Finally, The National Center for State Courts has a set of “Guidelines for State Trial Courts Regarding Discovery of Electronically-stored Information” on their website., which might provide some help in understand all of this.
Following the Federal rules, which kicked in Dec. 1, 2006, the article equates electronic discovery rules being adopted in Idaho, Indiana, Minnesota, Montana, New Hampshire and New Jersey. Arizona has rules which will become effective in January, and Maryland, Nebraska and Ohio have rules proposed.
The Ohio Supreme Court has amendment proposals to several sets of court rules including:
Both Criminal and Civil Procedures, including Civ.R. 16, 26, 33, 34, 36, 37, and 45 based on
amendments made to the Federal Rules of Civil Procedure, and CrimR. 10, accommodating electronic information. (Comments on those proposals are being accepted until November 14, 2007)
Lawyers, however are still predicting litigation backlashes due to state quirks and loopholes, the article says, and practitioners are going to have to deal with price tags on things like producing electronically stored documents and finding experts on “long-obsolete programming languages.”
A recent Law.com article, too, posted e-discovery storm warnings, in a look at the order issued by Central California District Magistrate Jacqueline Chooljian requiring TorrentSpy to turn over data “only ephemerally kept on its computers’ RAM.”
Finally, The National Center for State Courts has a set of “Guidelines for State Trial Courts Regarding Discovery of Electronically-stored Information” on their website., which might provide some help in understand all of this.
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